ILLINOIS POLLUTION CONTROL BOARD
September 9, 1999
CLAYTON CHEMICAL ACQUISITION LIMITED
LIABILITY COMPANY d/b/a RESOURCE RECOVRY
GROUP, L.L.C.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 00-34
(Variance - RCRA)
ORDER OF THE BOARD (by M. McFawn):
On August 24, 1999, petitioner Clayton Chemical Acquisition Limited Liability Company d/b/a Resource
Recovery Group, L.L.C. (RRG) filed a “Petition for Variance Regarding RCRA Permit Terms and to Deem Granted
Air Permit Application.” Because the petition is inadequate in many respects under the Board’s procedural
regulations (35 Ill. Adm. Code 104.Subpart B), the Board dismisses the petition.
The Board’s procedural rules set forth very specifically the information that must be included in a variance
petition. Generally, the required contents are enumerated at 35 Ill. Adm. Code 104.121:
To enable the Board to rule on the petition for variance, the following information, where
applicable, shall be included in the petition:
a)
A clear and complete statement of the precise extent of the relief sought, including
specific identification of the particular provisions of the regulations or Board Order
from which the variance is sought;
b)
A description of the business or activity of the petitioner including the size of the
business and number of employees and a description of the location and area affected by
petitioner’s operations;
c)
The quantity and types of materials used in the process or activity for which the variance
is required and a full description of the particular process or activity in which the
materials are used;
d)
The quantity and types of materials discharged from the process or activity requiring
the variance; the location of the points of discharge, and, as applicable, the identification
of the receiving waterway or land, or the location of the nearest air monitoring station
maintained by the Agency;
e)
Data describing the nature and extent of the present failure to meet the numerical
standards or particular provisions from which the variance is sought and a factual
statement why compliance with the Act and regulations was not or cannot be achieved
by the required compliance date;
f)
A detailed description of the existing and propo
sed equipment or proposed method of
control to be undertaken to achieve full compliance with the Act and regulations,
including a time schedule for the implementation of all phases of the control program
2
from initiation of design to program completion and the estimated costs involved for
each phase and the total cost to achieve compliance;
g)
An assessment, with supporting factual information, of the environmental impact that
the variance will impose on human, plant, and animal life in the affected area, including,
where applicable, data describing the existing air and water quality which the discharge
may affect;
h)
Past efforts to achieve compliance including costs incurred, results achieved, [and]
permit status . . .;
i)
A discussion of the availability of alternate methods of compliance, the extent that such
methods were studied, and the comparative factors leading to the selection of the
control program proposed to achieve compliance;
j)
A statement of the measures to be undertaken during the period of t he variance to
minimize the impact of the discharge of contaminants on human, plant, and animal life
in the affected area, including numerical interim discharge limitations which can be
achieved during the period of the variance;
k)
A concise factual statement of the reasons the petitioner believes that compliance with
the particular provisions of the regulations or Board Order would impose an arbitrary
or unreasonable hardship; and
l)
Such other things as are required by this Subpart [B].
Among the “other things . . . required by this Subpart” are the RCRA-specific requirements imposed by 35
Ill. Adm. Code 104.123(e):
e)
All petitions for RCRA variances shall include a showing that the Board can grant the
requested relief consistent with, and establish RCRA permit conditions no less stringent
than, that which would be required by the Solid Waste Disposal Act as amended by the
Resource Conservation and Recovery Act of 1976 (P. L. 94-580, as amended by P. L. 95-
609, 42 U.S.C. 6901 et seq.), and the regulations thereunder promulgated by the United
States Environmental Protection Agency (40 CFR 260, 261, 262, 263, 264, 265 and 270
(1984). Such petitions shall indicate whether any federal provisions authorize the relief
requested and shall include any facts necessary to show that the petitioner would be
entitled to the relief requested pursuant to federal law.
Additional RCRA petition requirements are imposed by 35 Ill. Adm. Code 104.126:
a)
The petitioner must clearly identify a petition for a RCRA variance as
such.
b)
Persons who have, or are required to have, a RCRA permit and who seek a RCRA
variance which could result in modification or issuance of the RCRA permit must have
on file with the Agency a RCRA permit application reflecting the requested variance
prior to filing the variance petition.
c)
Petitioner shall attach to the variance petition a copy of the RCRA permit application, or
such portion as may be relevant to the variance request.
d)
Petitioner shall attach to the variance proof of service on USEP
A as required by Section
104.142.
3
Inadequacy of a petition is grounds for dismissal. See 35 Ill. Adm. Code 104.125, 104.160(b)(1). In this case,
RRG has provided almost none of the required information. The petition consists largely of a recitation of the
history of litigation between RRG and the State, and sets forth various grievances RRG has against the State. The
petition does not contain the technical information required under Section 104.121, and does not contain all the
RCRA-specific information required by Sections 104.123(e) and 104.126.
RRG purported to incorporate by reference the “facts, affidavits and exhibits” filed in support of permit
appeals PCB 99-28 and PCB 99-158. Pet. at 2. This provision cannot cure the defects in the variance petition.
Incorporation of material from other proceedings is permitted only by leave of the Board, which must be sought
through a separate written request; the party seeking incorporation must also comply with filing requirements and
demonstrate the relevance of the material sought to be incorporated. 35 Ill. Adm. Code 101.106(a). RRG did not
make such a request or showing in this case; thus, its incorporations by reference are ineffective.
Furthermore, dismissal is particularly appropriate in this case because even if the petition contained all
the necessary information, the Board could not grant RRG’s requested relief in a proceeding of this type. RRG
requests relief from the Board at three points in its petition, on pages 17-18, 20, and 27. On page 17, RRG seeks “a
Variance from 35 Ill. Adm. Code 724.213 such that RRG is not required to commence permanent closure of its
facility[.]” Pet. at 17. Section 724.213(a) (the relevant subsection) provides:
a)
All permits must require that, within 90 days after receiving the final volume of
hazardous waste . . . at a hazardous waste management unit or facility, the owner or
operator treat, remove from the unit or facility, or dispose of on-site, all hazardous
waste in accordance with the approved closure plan, unless the owner or operator makes
the following demonstration by way of permit application or modification application.
The Agency shall approve a longer period if the owner or operator demonstrates that:
1)
Either
A)
The activities required to comply with this subsection will, of
necessity, take longer than 90 days to complete; or
B)
All of the following:
i)
The hazardous waste management unit or facility has the
capacity to receive additional hazardous wastes . . .; and
ii)
There is a reasonable l ikelihood that the owner or operator or
another person will recommence operation of the hazardous
waste management unit or facility within one year; and
iii)
Closure of the hazardous waste management unit or facility
would be incompatible with continued operation of the site;
and
2)
The owner or operator has taken and will continue to take all steps to prevent
threats to human health and the environment, including compliance with all
applicable permit requirements.
RRG argues, based on circumstances growing out of its litigation with the State, that it should not be subject to a
closure requirement.
Section 724.213(a) requires certain permits to include the requirement of closure after 90 days. RRG
already has its permit, which includes the 90 day closure requirement. Pet. at 9-11, 15-16. The Board cannot grant a
4
variance from a permit condition. See 415 ILCS 5/35 (1998). The relief RRG seeks—suspension of the closure
requirement—is specifically available under Section 724.213(a) through the permit modification process, assuming
the permittee can make the required showing. Any dispute over the granting or withholding of a permit
modification can be resolved by appealing the permitting decision to the Board. RRG cannot, however, obtain an
order in a variance proceeding that will allow it to keep its facility open beyond the deadline contained in its
permit.
In the other requests for relief in its petition, RRG is not seeking a variance from any regulation. At page
18 of the petition, RRG asks that the Board declare that a permit modification request was timely filed, and that the
permit modification should be granted. At page 20 of the petition, RRG asks that the Board declare that sufficient
grounds exist for issuance of a RCRA Part B permit, and order the permit issued. Finally, at page 27 of the petition,
RRG ask the Board to declare that an air operating permit issued by operation of law. A variance petition is not the
proper vehicle for obtaining such relief.
The Board dismisses RRG’s variance petition because the petition is insufficient under 35 Ill. Adm. Code
104.Subpart B. This docket is closed.
1
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the appeal of final
Board orders to the Illinois Appellate Court within 35 days of service of this order. Illinois Supreme Court Rule
335 establishes such filing requirements. See 172 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.246, Motions for
Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
adopted on the 9th day of September 1999 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
1
On September 1, 1999, the Illinois Environmental Protection Agency (Agency) filed a motion to dismiss this
proceeding. On September 3, 1999, the Agency filed a “Motion for Expedited Decision and for Extension of Time to
File Agency Recommendation.” The time for RRG to respond to the Agency’s motions has not yet expired.
Today’s action, however, is taken on the Board’s own initiative, and not in response to the Agency’s motions. This
action renders the Agency’s motions moot.